Criminal Justice Insider

In their depictions of criminal trials, courtroom dramas often accurately portray friendly direct examination by one lawyer and the adversarial nature of cross-examination by the opposing counsel. What such fictional productions often omit is the presence of a third potential inquisitor: the judge. In real criminal trials, it is not uncommon to see a judge insert himself or herself into the proceedings and ask questions of a witness directly.

A judge is, by law, permitted to question the witness. However, this power is not without its limits. The purpose of questioning by a judge should be to protect the record or direct the presentation of evidence and such questioning may not go further. As the New York Court of Appeals noted in People v. Arnold, 98 N.Y.2d 63 (2002), “Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial.” Put differently, while a judge may ask questions to ensure that a trial proceeds in an efficient and orderly fashion, or to clarify confusing testimony, he or she may not appear to be partial nor advocate for a particular outcome. The Court of Appeals cautioned that the trial court’s “discretion to intervene must be exercised sparingly.”

New York State judges received a recent reminder of these guidelines when the Second Department handed down its decision in People v. Mitchell, 2020 Slip. Op. 03541 (2d Dept. June 24, 2020). In Mitchell, prosecutors failed in getting two different witnesses to positively identify the defendant. The judge, himself a former prosecutor, intervened and questioned these witnesses until he received a positive identification from them.

On appeal, the Second Department ruled by interposing such questions, the judge assumed the role of an advocate. Rather than ensuring the fairness of the trial, the court inserted itself into the proceedings and appeared to advocate for a conviction. In so doing, the court deprived the defendant of his constitutional right to a fair trial. The conviction was ultimately reversed, and a new trial ordered. Mitchell serves as an important guidepost for future courts in drawing the line between questioning for efficiency and questioning for advocacy.

There is one further, but no less important, lesson to be learned from Mitchell: Just because the judge is asking the questions, it does not mean counsel cannot or should not object. A failure to object to improper questioning waives the right to subsequent appellate review.

In Mitchell, the appellate court took special pains to note that the issue of the court inserting itself into the proceedings was unpreserved. The Second Department opted to review and decide the issue because it has jurisdiction over matters which fundamentally affect the interests of justice. However, it could have just as easily declined to exercise such jurisdiction.

It may seem silly (and potentially prejudicial to one’s client) to object to the judge’s questioning given that the judge will ultimately rule on the objection (and it would not take a crystal ball to foresee the outcome of that ruling.). Nevertheless, it is important to object to improper judicial questioning in order to make a appropriate record and preserve the issue for later appellate review.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533